Advisory Opinion No. 99-82

Re: Town of Foster

A. QUESTION PRESENTED

The petitioners, Foster Town Councilors, municipal elected officials, through their Town Solicitor, request an advisory opinion as to whether they may vote on issues affecting an existing Town ordinance that provides a tax freeze to the elderly and disabled where the petitioners and/or members of their families benefit from the tax freeze.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioners, Foster Town Councilors, municipal elected positions, may not vote on issues affecting the Town's tax freeze ordinance since it is reasonably foreseeable that such participation would result in an economic benefit or detriment to the members of the Council and/or members of their families. Their participation in such votes would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d). If, however, the Town Council is not able to achieve a quorum because of the recusals required by the Code of Ethics, the Rule of Necessity would allow the participation of one or more members, notwithstanding their conflict of interest, so as to achieve a quorum.

C. DISCUSSION

1. Facts

In 1974, the Foster Town Council enacted an ordinance to provide tax relief for the elderly and the totally disabled. Under the provisions of the ordinance, any resident who has attained the age of sixty-five or who is totally disabled may file an application to stabilize the rate of taxation and the valuation of up to 4.5 acres of property, provided that the property is used for residential and noncommercial use. The petitioners and/or members of their families receive the benefits of the tax freeze.

The petitioners represent that 192 elderly and/or disabled households have applied for and received benefits under the ordinance. The total number of households in Foster is 1447. The elderly and/or disabled residents who have applied for and obtained the benefits of the freeze before 1989 have had the assessed value of their property frozen before the Town reevaluated property values, which has resulted in significant tax savings.

Since passage, the Town Council, either formally or informally, has considered the tax freeze ordinance on a number of occasions. The petitioners here inquire as to whether they may vote if and when issues affecting the ordinance come before the Council.

2. Analysis

The Code of Ethics prohibits public officials from taking any official action that is likely to have a direct financial or monetary impact on, among others, a family member, or from having an interest which is in substantial conflict with the proper discharge of their duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). A substantial conflict of interest occurs if as official has reason to believe or expect that he or a family member would derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). An official has reason to believe or expect a conflict of interest exists if it is "reasonably foreseeable" that either he or a family member would be impacted financially by the action. To be "reasonably foreseeable" the probability must be greater than "conceivable," but the impact need not be certain to occur. See Commission Regulation 36-14-6001.

We conclude that it is reasonably foreseeable that action involving the ordinance here would impact financially members of the Council and/or their family members. We further conclude that the 192 households in Foster whose taxes are frozen by the ordinance do not constitute a significant and definable class under R.I. Gen. Laws § 36-14-7(b). The total number of households in the Town of Foster is 1447. Therefore, the 192 affected by the ordinance constitute approximately 13% of the total. That percentage does not satisfy the standard for broad based legislation relied upon by this Commission in determining whether the 7(b) exception applies to actions otherwise prohibited by the Code of Ethics.

Finally, the petitioners’ letter suggests that quorum problems may result for the Council because a number of its members are prohibited from voting on matters affecting the ordinance. They inquire whether the Rule of Necessity may offer relief from this potential dilemma. In A.O. 92-1, this Commission recognized a "Rule of Necessity" exception for situations where recusals inhibited governmental process. In that instance, three members of the Smithfield Zoning Board of Review were required to recuse themselves from the consideration of a petition submitted by the Elks Lodge, thereby preventing the Board from considering a matter at issue for lack of a necessary quorum established by the Supreme Court. We concluded that one affected member should participate and/or vote on the matter at issue provided that, prior to the consideration of the petition, the three affected members conferred among themselves to select the member whose relationship with the Elks would least likely influence his or her decision. By operation of this “Rule of Necessity,” the governmental body would be freed to conduct its business with minimal disruption and opportunity for improper influence. Consistent with its past advisory opinions, the Commission concludes that where a majority of councilors must recuse themselves for the reasons discusses above, an affected councilor(s) necessary to establish a quorum may participate in the Council’s decision.

To fulfill the quorum requirement, the affected councilors should decide between themselves which individual’s or individuals’ interest would be affected least by his or her participation. For example, as between an individual council member who would be affected and a council member whose family member(s), but not him or her, would be affected the latter should be the one to participate. Additionally, the participating councilor should make public disclosure of these facts and, the basis upon which he believes he can objectively participate and vote in the matter at issue, all prior to his participation and voting in connection with same.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)
36-14-7(b)
36-14-6001

Related Advisory Opinions:

98-127
98-72
98-43
98-30
98-27
97-86

Keywords:

Family: Financial Benefit
Rule of Necessity
Class Exception